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SPEECH 



OF 

MR. SCHENCK, OF OHIO, 

A i! 

ON THE 

BILL TO REFUND GENERAL JACKSOn's FINE 

IN THE 



HOUSE OF REPRESENTATIVES, JANUARY S, 1844. 



> 




The bill to refund the fine iinposed upon General Jackson in 1815 being under consideration in 
Committee of the Whole, Mr. SCHENCK addressed the Committee as follows: 

Mr. Chairman : When I succeeded in obtaining the floor before the last 
adjournment of the House, it was with a desire, which you remember I 
expressed, to proceed at once and address the Committee such remarks as 
were then freshly suggested to ray mind by the tone and character which 
this debate had so far assumed. There were some things that struck me 
as I listened to them — some novel, and I must be permitted to say, dan- 
gerous doctrines and propositions, in the speeches of gentlemen who have 
spoken on the other side of the Hall, which it seemed to me not difficult to 
answer and refute; and I felt confidence enough to seek the opportunity 
of encounter with such doctrines and propositions, even as the first occa- 
sion of my ever venturing to participate in discussion here. I feel now that 
I might better perhaps have left the undertaking to some one who would 
have had the advantage of more experience ; for having yielded at that 
time to the interruption of delay, which seemed to be most agreeable to a 
majority of the members around me, and the excitement of the liour being 
gone by, I am afraid that I may find it difficult to regather the thoughts 
that suggested themselves as gentlemen were proceeding in their earnest 
and almost passionate appeals in favor of the passage of this bill. At any 
rate, I will only ask the attention of the Committee while I confine myself 
to reply. I do not mean to argue the merits of the bill, or the objections 
to it, at large. That has already been ably and sufficiently done — better 
far than I could hope to do it — by the hoaojable gentleman from New 
York, (Mr. Barnard.) 

I may be allowed, however, to premise the present state of the ques- 
tion. It is on the amendment offered by the gentleman from Georgia, (Mr. 
Stephens ;) and I am glad that he has proposed such a test. It will com- 
pel every member to " define his position" in this matter. 

It has been charged by the opponents of this bill that the great ob- 
ject to be accomplished by it — in fact, its leading purpose — is not so much 
to do justice to General Jackson as to cast reproach on the memory of 
Judge Hall, who imposed the fine that is to be refunded. And gentlemea 
who advocate the measure seem not to be entirely agreed among them- 



2 . 'U'S^^ 

selves whether such is its design or not. Some avow that it is offered in 
that view ; others, claiming to be equally its friends, deny every such un- 
worthy motive as actuating them in its support. But I say the amend- 
ment of the gentleman from Georgia is a test, in the application of which 
there can be no mistake. The bill simply provides ror refunding the fine, 
with interest. This amendment proposes that nothing in the act shall be 
construed to imply censure on the judge. How plain the question, then. 
The bill is either intended to stigmatize the memory of the judge or it is 
not. It^ it is, then gentlemen, to be consistent, must reject the amendment ; 
for that, by robbing their action of its power to wound, would defeat their 
very object. If it is not, then gentlemen cannot consistently refuse to vote 
in favor of the amendment; for it does nothing more than clearly declare 
what they themselves approve. There is no middle ground between these 
propositions for any one to stand upon. All we ask of you is to say, in so 
many words, that you do not mean to assail and defame the memory of 
the dead. If you will not unite with us in declaring that, it must be be- 
cause you do mean, and are resolved, as far as your solemn act of legis- 
lation can accomplish it, to brand disgrace upon the reputation of one 
whom his Maker has otherwise, perhaps fortimately for him, removed be- 
yond your reach. There can be no other interpretation put t^pon your op- 
position to this amendment. It proposes to abate nothing from the justice 
to be done to General Jackson. All the grateful and kindly purposes de- 
signed in his behalf will remain. It does not surely need, that to honor him, 
another must be trampled upon. His friends will not assume — nay, no 
one upon this floor will do him the discredit to say — that his character can 
have no lustre, except as it is reliev^ed and made to stand out upon the 
foreground in contrast with the fame of another, to be blackened and 
stained for his advantage. When gentlemen, then, so violently oppose the 
adoption of this amendment, I am bound to presume — nay, lean conchide 
Bothing else fairly — but that this bill is intended more as an attack upon 
the dead Judge than for justice to the living General. 

But if the face of the proceedings, and the plain action of the commit- 
tee and of the House, should leave room to doubt whether there was any 
direct attack intended upon the memory of Judge Hall, that doubt would 
all have been removed by the course which some gentlemen have thought 
proper to pursue, and the avowals which they have openly made here, 
even in this debate. Every epithet of abuse that was at the command of 
those most prolific in terms of reproach, every contumely that could be 
heaped upon his devoted head — or rather piled upon his desecrated tomb — 
have been called into requisition to give force and pungency to the attack 
upon the officer of the laAV, whose greatest sin appears to have been that 
he dared fearlessly to do his duty under the most trying and difficult cir- 
cumstacces. ''British judge," "traitor," <' tory," " coward," and .•-g on, 
running down through the gamut scale of abuse, until it was thought even 
not beneath the dignity of the debate and the occasion to vilify him with 
the very choice epithet, "sneaking poltroon." And, to remove at last all 
question as to the true object of this bill, the gentleman from Illinois, (Mr. 
Douglass,) in the zeal of the onset, proclaimed that his only objection to 
it was, that it did not contain a clause expressly designed to condemn and 
brand (he Judge. That gentleman, in his almost frantic heat, went still fur- 
ther, and declared that it was the good fortui e of Judge Hall, more than his 
deserving that saved him from the infliction of Lynch law. Stange doc- 



trine this, to be preached by one who is not only here now as a law-maker^, 
but was recently himself a law-expouiidero But more of that anon. 

One word more on this point, Mr. Chairman. Perhaps I am doing in- 
justice to the advocates of tliis bill not to cite a still higher autliority — I 
mean as to the real ohject of the proposed amendment. When, in a for- 
mer year, another branch of Congress had passed a bill to refund this fine, 
with the proviso thai it was to imply no censure upon the deceased Judge, 
General Jackson himself, I believe, publicly expressed his determination 
to accept no act of relief accompanied by any such condition of justice to 
the character of the magistrate who had been the instrument of his pun- 
ishment. 

Now, then, let me follow gentlemen in their argoments, to see why this 
vindictive spirit is to be cherished towards Judge Hall, and this stigma 
cast upon his fame and memory. 

It is a little strange that the first inquiry which presents itself in our 
way is imbodied in the question, /or tvhat was General Jackson fined? 
For no one who has listened only to the speeches of those who assume to 
be his exclusive friends on this floor would ever from them have gathered 
a correct answer to that simple preliminary question. Why, sir, if you 
take their version for history, Judge Hall sought to punish General Jack- 
son because he had bravely fought the battle of New Orleans, and saved 
the country from an njvading and insolent foe — because the General had 
gallantly defended the homes and the wives and daughters of that devoted 
city from the horrid desolation and hrutal licentiousness with which they 
were threatened, and thus disappointed, gentlemen say, that '• Federal 
judge," whose sympathies they suppose to have been all with the enemy. 
These, it is true, are not, by all the advocates of the bill before us, dis- 
tinctly stated as the groimds of the fine ; but the whole lone and course of 
argument, and all the fierce denunciations and unrestrained indignation 
poured out upon the case by the gentlemen from Indiana (Mr. Kennedy) 
and my two colleagues, (Messrs. Dean and Weller,) assume that such, 
.and no other, was the extent of General Jackson's offending. The gentle- 
man from Illinois, (Mr. Douglass,) hov/ever, less equivocal than others, has 
made a distinct and specific statement of the offeace. He has said, in so 
many words, that General Jackson was fined "because he declared mar- 
tial law;" and thereupon he labors to prove that he was justified and 
right, under the circumstances and necessity of his situation, in putting 
i^^e'Vf Orleans under that strict mititary rule. 

Sir, I will not permit myself to be drawn oflf into the question of the le- 
gality or constitutionality of such declaration of martial law It has been 
met and ably argued by the gentleman from New York, (Mr. Barnard;) 
and if it had not, it is altogether collateral matter. That is not the true 
question before us. It is a false issue. I care not, for the purposes of 
this inquiry, whether martial law there was proper or not, legal or not, 
constitutional or not. General Jackson was not fined for declaring martial 
law ; much less for making that glorious and successful defence which has 
ranked him high among the greatest captains of the age. He was fined 
for a contempt of court, for obstruction to the due authority of one of the 
highest civil tribunals of the country; and fined only, in all probability, 
because he obstinately refused to make any regular and proper defence to 
the judicial proceeding instituted aaainst him. If he had consented to 
make that defence, to make it in proper form, and under the rules of the 



court, as he was plainly advised by the court itself that it might be made, 
it is very certain that no punishment would have been inflicted. But he 
refused to do it. Before we look, however, at the necessary, the inevita- 
ble legal consequences involved in that refusal, let us review briefly the 
facts which history furnishes us in relation to this matter. They can be 
very succinctly stated. Dates are important, and I beg gentlemen to note 
and remember them. 

On the \5th day of December, 1814, General Jackson issued his procla- 
mation declaring martial law. 

On the 8/A of January following, the battle of New Orleans was fought 
a few miles below that city, the enemy repulsed, and that glorious victory 
obtained which has consecrated this day in the annals of our country. 

On the 19/A of January, the British camp having been evacuated, 
and their troops and naval force withdrawn. General Jackson wrote 
to the Secretary of War " that he had little doubt the enemy's last exer- 
tions had been made in that quarter, at least for that season ;" and added, 
" you will not think me too sanguine in the belief that Louisiana is now 
clear of its enemy ;" and accordingly, on the 2\st, the General returned with 
his triumphant army to New Orleans, where they were received with every 
demonstration of joy and every mark of honor and congratulation by the 
citizens, and their success celebrated with the highest festivity. 

On the IBM of February, hq^ns was received, by the way of Jamaica, 
that a treaty of peace had been concluded by the American and British 
Commissioners at Ghent. 

On the 3d of March, Mr. Louallier, a member of the Louisiana Legis- 
lature, and one who had been active in aid of the army, published in one 
of the newspapers at New Orleans a communication complaining of the 
harsh manner in which certain French subjects of that city had been treat- 
ed by General Jackson. 

On Sunday, the 5th of March, for this publication, Louallier was ar- 
rested by order of Jackson, and thrown into prison. He immediately ap- 
plied by his counsel, in petition to Judge Hall, the United States District 
Judge, for a writ of habeas corpus. The Judge allowed the writ, as by 
every rule and obligation of law and duty he was bound to do ; and espe- 
cially required to do it, when he considered the fact that the Legislature of 
the State had refused, even when the enemy were threatening the city, to 
suspend, at the request of General Jackson, that writ, so sacred and cher- 
ished as among the dearest safeguards of personal liberty. On the even- 
ing of that same day, the Judge, having notified the General that such a 
writ had been awarded, was himself seized and imprisoned, by a party of 
sixty soldiers, sent under the General's order to his house, where they ar- 
rested him. By this violent and flagrant act, which took place during a 
term of the district court, the court, which had adjourned over from the 
4th to the 7lh of March, was prevented from continuing its session. 

I will say nothing now of the subsequent arrest of the district attorney, 
Mr. Dick, because he dared to apply to another Judge for a writ of habeas 
corpus for the release of Judge Hall ; nor of the order of the General to 
arrest also that other Judge, because he dared to decide that he would al- 
low such a writ. I want to confine myself to those facts, with the dates 
of their occurrence, which bear more immediately on the true issue of this 
debate. Let us proceed with them. 



On the &th of March, GeneralJackson received news of the ratification 
of peace at Washington ; and on the saine day issued an order for a court 
martial to convene to try Mr. LoualUer for his hfe ! 

On the Sth of March, he disbanded the militia. 

But Judge Hall was still kept in close confinement until the llth of 
March, when he was sent four miles oat of the city, under a guard of sol- 
diers, and discharged with indignity. On that day, also, Louallier had been 
tried, and was acquitted ; but General Jackson issued an order disapprov- 
ing the decision of the court martial, and did not release him until the IQtk 

of the month. . , mr i 

The court of the District Judge did not meet again until the 22d of March. 
Proceedings were then instituted in due form against General Jackson, for 
contempt and obstruction of its authority. A rule was issued against him 
to show cause why he should not be attached. He presented, through his 
counsel, a long paper in reply, but refused to receive or answer the inter- 
rogatories which the district attorney presented in the case, under the regu- 
lar" rules of the court; thus defying again the authority and the judgment 
of the civil tribunal, and setting up his arbitrary will against the form of 
proceeding which the law provided. He was fined. Could it have been 
otherwise ? If he had consented to make any answers— if he had only 
replied, and shown that he had no purpose of contempt, the law would 
have been satisfied. But he would do neither. The question was not, 
then, whether he had a right to hold the country under martial law— whe- 
ther his arrest of Louallier was lawful or not— whether military force and 
his will were to be substituted for all other rule ; it was only whether he 
designed a contempt of the judicial power. His friends, the advocates of 
this bill, have argued long and loud here about the completeness and 
strength of his defence— of the entire constitutionality of his proceeding— 
or at least of the overwhelming necessity under which he acted. Why 
did he not make that defence ? If it was so good and conclusive, his con- 
tumacy was the less excusable. But he refused ; and the law took its 
course'. Judge Hall was but its humble instrument. 

Thus then stood the case. Let us pause and consider the scene which 
it presented. On the one side, the law to be observed ; on the other, the 
defendant arraigned, who was resolved to disregard it. The Judge had no 
alternative. The General or the Court must triumph. Which shall it be ? 
If the Judge had succumbed ; if he had peruiitted his authority— no, not 
his, but the authority of the Constitution and the law which he represent- 
ed—to be derided and defied, then indeed would he have deserved all ot 
the execration with which gentlemen now so unjustly assail him. But 
even that yielding might have been in some degree, if not blameless, at 
least pardonable ; for^here was no ordinary defendant to deal with, and no 
slight temptation to favor escape. A general, flushed with victory, the ac- 
knowledged saviour of the country from depredation, the idol of the people, 
backed by an excited soldiery, surrounded by enthusiastic thousands who 
were ready to do him homage, or to maintain his cause, right or wrong — 
such was the man that stood arraigned there before thatcourt— before that 
Judge ; and, in the face of it all, that Judge dared to do his duty ! Sir, it 
was a great moral contest, and a heroic triumph— a triumph of the law, 
ahke honorable to the brave Judge who vindicated the power of that law 
of which he was the minister, and to the brave soldier who raognanmiously 
submitted to its requisitions, restraining even the temper of those who mur- 



6 

mured at, and would willingly have resisted, the indignity which they sup- 
poseri had been done to the popular favorite. Well may it be said that they 
would rob General Jackson of one of the greenest leaves in the laurel of his 
fame who would now take from him the merit of that noble and manly sub- 
mission to the law. It is easy for you, fair weather judges — for gentlemen 
like the member from Illinois, (Mr. Douglass,) and my colleague, (Mr. 
Dean,) who have served in such stations "in the piping times of peace," 
to talk flippantly of the duties so easily and rightly to be performed by those 
upon whom devolve the high responsibilities of the bench ; but they have 
no experience, of the strength required and the firmness to sustain an 
officer in his rectitude under such fearful odds. And they denounce 
Judge Hall, withal, as a coward. Yes, as a coward ! A coward? Why, 
sir, I have been accustomed to think tliat cowards were made of far other 
stufl^ I have understood true bravery as something different from what 
these gentlemen imagine it. Courage — what is it ? The lion that fiercely 
rushes upon his prey has courage ; but the man, the nobler animal, that 
looks that lion boldly in the eye and quells him in mid-career — him I call 
the hero. Sir, we had an exhibition of true moral courage, according to my 
understanding of that virtue, here in this Hall only a day or two ago, when 
the House was engaged in debate upon another and most exciting subject. 
It was when my friend from North Carolina, (Mr. Clingman) — the honora- 
ble member will pardon me for thus making him serve as an illustration to 
my argument — when that gentleman stood up alone in his place, and boldly 
and manfully avowed, and, I will add, most ably and eloquently defended, 
his honest opinions in regard to the right of petition on the subject of sla- 
very. He knew that those opinions would bring him in conflict with his 
colleagues, with all the Representatives from that quarter of the Union ; 
he knew too well how very liable the declarations he made were to be seized 
upon and urged to his personal disadvantage among his constituency at 
home ; but he dared, against all this, to maintain the honest convictions of 
his own judgment, and to do what he believed was right. That is what I 
call true courage. That makes the moral hero. And when such proof of 
this quality is conceded to Judge Hall, it will little avail to seek to brand 
him with the mean epithet of coward. 

Mr. Chairman, there is another respect in which gentlemen seem studi- 
ously anxious to keep out of consideration the authentic history of the 
transaction in question. I will not presume that the advocates of the bill 
mean designedly to make a false impression upon the public mind as to any 
important matter of fact. But certainly I may say that there is a very un- 
fortunate confusion in their chronology. Relying only on the speeches on 
that side of the question for information, a person sitting in that gallery 
must have gone away full of the belief that this odious Judge had traitorously 
obstructed the defence of New Orleans, and interfered with the power of the 
General in the very midst of the conflict of arms. Why, sir, if this harmless 
civilian had somehow contrived to spike the American cannon upon the bat- 
tle field, he could not have been assailed with more uncompromising de- 
nunciation as an enemy to the country. The gentleman from Illinois (Mr. 
Douglass) so wrought upon his imagination, or permitted his imagination 
so to work upon him, that he fancied he saw the General interrupted by the 
judgment of the court in the very moment when he was perilling his life to 
-defend that court itself from the rude assaults of a murderous enemy. Hear 



him on this subject — and, to avoid all mistake, I read from the fresh report 
of his speech which has just been put into my hand : 

" He did not env}' the feelings of that man that would get up and talk calmly and coolly, un- 
der such circumstances, about rules of court, and technicalities of proceeding, and the danger of 
example, when the city might he in flames and the utmost barbarity might he committed. What 
were rules of court but mere cobwebs, when they found an enemy with his cannon at the doors of 
their courts, and when they saw the flames encircling the cupola ? Talk then about rules of court, 
and the formality of proceedings ! The man that would do this would fiddle while the Capitol 
was burning." [Sensation.} 

Yes, "sensation" — that is the word. Put in brackets, I suppose, to 
show that this " sensation" was no part of the speech itself, but only the 
comment of the Globe's reporter. Why, whh what a fearful tragic picture 
the gentleman from Illinois was determined to terrify us all — including the 
ladies in the gallery ! Quite a scene ! But what a pity that this and 
other such scenes, got up for the embellishment of this debate, must all 
dissolve and fade away under the clear light of the facts. Now, those facts 
are, that all these proceedings, as between the Court and General Jackson, 
occurred, and this fine upon him was imposed, in a time of profound and 
perfect peace — nearly three months after the battle was fought — when 
there was no foot of an enemy upon our soil — when our citizens had re- 
turned to the quiet pursuits of life — and when civil rule had every where 
resumed, or ought to have resumed, its wholesome sway over the land. 

Mr. Chairman, if gentlemen had looked a little more closely into the his- 
tory of that period, they would have avoided another mistake. We have 
been reminded that this is the memorable eighth of January. To-day this 
bill is to be passed through the House. The resolution adopted this morn- 
ing, to discharge the Committee of the Whole from its further considera- 
tion, when the hand upon that dial shall reach a certain hour now rapidly 
approaching, was too significant to be misunderstood. The majority have 
willed it. It has been decided on already in caucus, and nothing remains 
but to register the party edict here. We are to have the gag of the py^e- 
vious question applied : and no more debate, nor any amendment allowed. 
This is all to be in honor of the day ; and then comes the jollification over 
the work to-night. It is all in the bill of fare. Now, sir, the mistake is 
this. When you w;eie selecting an anniversary for " the deed" — when it 
was given out, as I' have heard it all around this Hall, that the day which 
saw the wrong done was to be chosen above all other days in the year for 
its redress, the managers of the play should have appointed the 31st of 
March for their favorite's "benefit." There would have been some ap- 
propriateness in that date, which there is not at all in this. That was the- 
day on which the fine was actually imposed. But no, sir, no ; there has 
been no mistake. The selection of this day, with its patriotic associations, 
is but another part of that deceptive illusion to be practised on the public 
mind as to the time and circumstances under which the military and civil 
power came into conflict at New Orleans. Every thing must be perverted — 
even the calendar itself — to put Judge Hall in the wrong, and to justify 
General Jackson. 

But, Mr. Chairman, I am willing, for one, if I may be permitted to have 
any voice in the matter, to compropiise this difference ; and in that view, 
let me make to you, and through you to " the party," another suggestion. 
As you seem not inclined to celebrate the exact day of the fining, but would 
probably not object to getting very near it, suppose, instead of taking the 



8 

31st of March, as I at first proposed, you delay your action upon this bill 
and the attendant emng and drinking, until the Jir si of J2pril I think l" 
can mtn^ate good reasons for such a change. It is well understood that 
all this ado about obtaunng justice for Old Hickory has less relation to hi- 
interests than to the fortunes of a certain other gentleman, whose friend^ 
expect his trading capital to be somewhat incr^eased by the political in- 
vestment of tins fine. Why not, then, postpone the passage of the bill to 
a date that would be so peculiarly significant of its intention ? By that 
means, too, you would rid the occasion of all those painful memories of 
dangerous strife and warfare, associated in every mind with the annual re- 
turn ot this day, and which must be so disagreable to your leader The 
people of this country generally now have ascertained that Mr. Van Buren 
did not actually fight the battle, at least not that battle ; nor do I know 
that he was ever fined ; but if he has been, it was probably not for any 
martial violence-for he has preferred always the civil practice and the 
arts of peace. Let it not be said, though, that he has not a heart to sym- 
pathize with one vvho has both fought and been fined ; or that he is too 
proud to unite his fortune and reputation with such a personage. True it 
IS, that Ins own desire has ever been for peace ; but let me sh? w you that 
mtha consists his merit If in 1S12 we did unhappily get involved in ^ 
difficulty with Great Britain, " thou can'st not say he did it." No sir • Mr 
Van Buren 's discretion in opposing Mr. Madison, the war candidate for 
the Presidency, is proof that none of the responsibility of that hostility 
to the mother country should attach to him. Nor did he afterwards en- 
courage or mingle m any of those rude scenes, at New Orleans or else- 
where, which, in the end, you see, led the more incautious Jackson into 
trouble. He was not there, wasting his great energies, and endangering 
his valuable life, on that fearful eighth of January ; but, like a usefiil and 
considerate citizen, was to be found in the interior of his native State se- 
cure from all unnecessary exposure, industriously engaged at practice in 
the county court, and diligently looking after the politics of his own and 
the neighboring townships. Wonderful man ! Sir, no ^m«// inducement 
would have enticed him from those useful and patriotic labors, to that re- 
pulsive field of carnage. It is true, he might have been persuaded, when 
^gentle peace ' was restored, to tear himself from the shades of his be- 
loved Kinderhook, and visit New Orleans, and especially might he have 
hurried to that scene of action if advised of the judicial proceedings ac^ainst 
the victorious General. Ah, sir, would he not then have stoSd finn at 
Jackson s side, as counsellor and friend, if the old General had but wished 
to retain him there ; and would he not have bravely vindicated the course 
arid conduct of the gallant chieftain— if not employed first on the other 
side ? Mr. Chairman, I do not wonder that gentlemen get excited and 
warm with the subject, when they think of these great sacrifices that might 
have been made by their leader. But, sir, when I reflect upon the pe?u- 
har connexion of Mr. Van Buren with the scenes at New Orleans, and 
with this tribute of justice to the old hero, and of the way in which it is 
all expected by his friends to operate upon the public mind, I cannot for- 
bear to urge upon you, instead of this Sth of January, the first day of 
Jipril for your festivity. * -/ ^ j 

But I wonder, Mr. Chairman, that one more scheme has not been thought 
of to give eclat to this celebration. Since it seems to be thought that the 



incense of adulation will not be grateful to General Jackson unless it rises 
from the broken altar of another's fame, the offering might be made still 
more complete. Hunt out, I pray you, the tomb which covers the remains 
of Judge Hall, draw black lines around any inscription you may find upon 
it write " expunged" across its face, and then send the instrument with 
which the deed has been done to be preserved among other memorials of 
the triumph of arbitrary will, and of obedient servility over all that we 
have been accustomed to regard as most sacred. 

I am sorry, sir, that I cannot even award to General Jackson, in another 
respect the credit for magnanimity which the gentleman from Illinois (Mr. 
Douglass) has claimed for him. That gentleman declares that « the mo- 
ment the official news arrived that peace was declared— the moment 
the enemy retreated, the moment that danger ceased, and the necessity 
for the rigid exercise of his military authority ceased— he submitted 
to the civil tribunals." Sir, this is another specimen of the manner in 
which dates are disregarded ; or else I must say that that gentleman's 
measure of time is by some very uncertain standard— his "moments ot 
exceeding long duratibn. Why, sir, we have already seen that all these 
difficulties with the civil authority transpired long after every hostile torce 
had been withdrawn — when there remained no alarm to terrify, no danger 
to apprehend. But. forsooth, there was no '-officiaV news of peace. Of- 
ficial news? Special pleadintr from a gentleman who, in the same breath, 
has proclaimed to ns his scornful contempt for all " forms" and " technical- 
ities,'' as " cobwebs fit only to be brushed away !" Does that gentleman 
not remember that, although owing to a mistake in enclosing a wrong des- 
patch at Washington, the General did not get "official" notice of the peace 
until the 16th of March, yet he had full knowledge of it before, sufficient in 
his own judgment for every purpose. I do not allude now to the news from 
Ghent, received on the ISth of February, but to that intelligence which he 
had on the 6th of March from the Postmaster General, informing him of 
the ratification at Washington. It was so authentic that he immediately 
forwarded a copy to the officer commanding the British force off Mobile ; 
so authentic, that two days afterv.^ards he disbanded his own militia. Yes, 
sir, he could do without an army, but he could not yet relax his grasp upon 
the unoff'ending citizens who had displeased him by their obedience to the 
laws of the land and their vindication of its authority. They were still 
kept for days longer in loathsome durance, as common malefactors ; and 
one of them but reluctantly and tardily released from prison, even after a 
military tribunal of the General's own appointment had tried and found him 

guiltless. , 

Mr. Chairman, ail these perversions and glosses, doing violence to tne 
truth of history, tend but to prove the weakness of the cause that has to re- 
sort to them for justification or apology. 

Well, sir, what has been the next resort of the friends of this bill ? b aiK 
ing to find any thing in the merits of the transaction itself, and in the con- 
duct of the Judge, which should warrant them in this cruel attempt to stig- 
matize his memory, they have sought for it in the person and character ot 
the individual himself. I will not stop now to inquire what that has to do 
with the true question as to the judgment he rendered — of that I will speak 
' hereafter. But what are these personal charges and objections ; these 
with which, avoiding the real point, they seek to impeach, not a District 



Judge of the United States, but the individual, Dominick A. Hall, who 
chanced to hold that office ? 

Judge Hall was an Englishman. So said the gentleman from Louisiana, 
(Mr. Slidell,) and the gentleman from Indiana (Mr. Kennedy) and 
my colleague over the way (Mr. Weller) have repeated and rung 
the changes upon that charge in every variety of expression : a " Brit- 
ish expounder of the law" — "foreigner" — "unfit to administer justice 
to native-born Americans." Sir, I know that no man can glory more 
than I do in the name and title of an American, I am proud of my 
country, of its institutions, its history, and its people. It is to me, too, 
a source of sincerest gratification to remember that I stand here upon 
this floor, representing the very hearth-stone by which my existence began, 
and numbering among my constituency the associates of my boyhood. It 
was my fortune, indeed, to be born and brought up so far in the interior, 
that I am as little likely as any one to be subject to foreign influence, and 
perhaps for that reason all the more liable to entertain national partiahties 
and to cherish national prejudices. Yet this denunciation of Judge Hall 
for his foreign birth has no eflect upon me. I can look beyond that acci- 
dent, to the man and the officer. It was a barbarian sentiment, in the in- 
fancy of language, that made '-stranger" signify the same as "enemy." 
But such narrow iUiberality can meet with little sympathy in this enlight- 
ened age and free country. Is it impossible that there can be any patriot- 
ism, or regard for law, except in the bosom of one who is a native to the 
soil ? Is love of freedom and of free institutions to be found nowhere but 
within the circumscribed limits of these United States? Is the apprecia- 
tion of liberty bounded by geographical lines ? Sir, who helped to fight 
the battles of that Revolution which secured to our fathers, and to us, this 
glorious inheritance of which we boast ? Do gentlemen remember in the 
history of our country such names as Lafayette, and Lee, and De Kalb, and 
Steuben, and Pulaski? There is hardly a State in Europe the blood of 
some of whose sons has not been shed in our behalf. A crime to be a for- 
eigner? Let that be marked ! There is a party in this country who have been 
always proclaiming that they alone are the true and peculiar friends of the 
emigrant who comes hither to seek an asylum and a better home — a party 
who have sought every where throughout the land, and continually, to 
make political capital by flattering and cajoling with professions of attach- 
ment every thing that disburdened Europe has cast upon our shores ; who 
have pretended almost to set the naturalized citizen above the native born; 
whose universal arms of love and fraternity Jiave been spread to enfold 
indiscriminately the good and the bad, stipulating only, as a return for all 
this superfluous aff'ection, for their votes ! But now here, even in the very 
balls of our National Legislature, when a diflerent sentiment better suits 
their purpose, we have heard the organs and leading representatives of 
that same party declaring themselves as if no foreigner could possibly be- 
come a faithful citizen of the land, or attached to the principles of its Gov- 
ernment. But Judge Hall was an Englishman, and therefore peculiarly 
odious. A British Judge, and therefore incapable of administering aright 
the law. Sir, have gentlemen no reverence for such names as Hale, and 
Coke, and Mansfield, and Eldon, and Blackstone, and a hundred others, 
the very progenitors of whatever makes this country freer than theirs — 
men that have illustrated by the light of their great minds the eternal prin- 



11 

ciples of liberty and right which have been itnbodied in our written Con- 
stitutionson this side of the Atlantic? A native of Great Britain, and therefore 
no patriot I Let that not be asserted until the names of Sydney, and Hamp- 
den, and Raleigh, and Chatham, and Burke, have equally been forgotten. Is 
it a reproach to be a foreigner ? Why, I remember well when it was claim- 
ed as a merit for General Jackson himself, whom gentlemen now cannot 
sufficiently glorify, that he barely escaped being an Irishman ! But I 
should like to hear tfie gentleman from Indiana (Mr. Kennedy) address 
his argument on this subject to his colleague there, (Mr. Owen,) who sits 
near him, and who is a native of that same island of Great Britain. What 
does he think of the doctrine that a man can have no head or heart to 
maintain or sympathize with American institutions, unless he had the good 
fortune to derive his first existence here ? Will any one do that gentleman 
the injustice to presume that he has no patriotism in his bosom, and is un- 
fit to legislate here, because he was born in that old country, north of the 
Tweed ? I would trust that the committee will be favored with the views 
of that honorable gentleman upon the merits of this imputation against 
Judge Hall. He would be very apt, I think, to answer his colleague and 
mine in the language of an old Scotch friend of mine, who summed up, as 
I thought, in a most happy retort, the whole argument on this subject. 
My friend, sir, was a stanch, good Whig — and none the less a patriot, you 
must admit, on that account. He was engaged in warm political dis- 
cussion with a flippant young sprig of Democracy, just released from col- 
lege, enjoying his new liberty and incipient manhood, priding himself upon 
being the happy son a then distinguished Senator, and fully persuaded 
that there was every reason why he should be upon the best possible terms 
with himself. Well, sir, the controversy grew warm. My friend, the 
Scotchman, stuck fast to the old-fashioned Whig doctrines which came in 
with the Constitution, and which were thought sound enough by such men 
as Washington and Madison ; the smart young Democrat opposed to these 
the new lights of modern discovery, backed by the weight of his endorse- 
ment. But my young gentleman at last lost his temper — a sure sign that 
he was worsted in the debate ; and, for lack of better argument — like some 
other young gentlemen not very far off — accused his opponent with being 
a foreigner. -' You are not a native of the country, sir,-' said he, " and you 
can know nothing of our politics, and have no business to meddle v.dth 
them, any how." This any how is a great word with ns in the West, you 
know, Mr. Chairman. " Hoot, mon !" said the old Scotchman, "and is it 
that you rely on ? You were born in the country because you could na 
help yoursel; but I came to it from choice, and because I loved its insti- 
tulionsy 

But the next reason urged against the judgment of Judge Hall was, 
that he was a coward, and never bore arms in defence of the country. I 
have already disposed, I think, of that charge. We have seen of what sort 
of stuff he was made, and how he bore himself under the hard test of true 
moral courage ; though he may not have thought it necessary, or, if you 
please, had not the nerve, to abandon the more appropriate duties of his 
civil station to shoulder his musket and take his place in the ranks of the 
army. 

This fine should be refunded, though, even at the expense of Judge Hall's 
memory, because, say gentlemen, he is dead now, and has left no one to be 



12 

affected by any stigma upon his character. Sir, is not that most magnani- 
mous ? That is beyond all doubt true courage ! Because there runs none 
of the blood of that man now in the veins of any living human being that 
we know — because tjiere is no one left who may be moved by the ties of 
kindred or affection to defend and resent this aspersion of his fame, the 
gentleman from Illinois (Mr. Douglass) thinks that no harm can be done by 
a refusal to adopt the amendment which would relieve his conduct from 
censure ! 

[Mr. Douglass interrupted, and asked permission to explain. He had 
not urged it as a reason why the Judge might be stigmatized. He had 
only said that he did not know that he had any friends.] 

Mr. ScHENCK. Yes, yes, I understand. "Kick him, Bill, he has no 
friends." That was what one loafer said to another, when they were im- 
posing upon a poor fellow whom God had left desolate, and with none to 
take his part. But, sir, I did not expect any such principle of action and 
attack to find a place in our deliberations here. Be it so, that this Judge, 
of whom I know nothing, except what I gather from the public records, has 
left neither name nor family behind, he shaU none the less have my defence 
of his acts and reputation when they are assailed, because of his main- 
tenance of the law. He is gone to his long home ; and if alive, would 
probably have no political influence or popularity. No magic of a formida- 
ble name supports him, and finds in all his acts something too sacred for 
any thing but prostrate admiration and obedience. I advise gentlemen to 
reflect whether it may not be some disposition to pay homage to the living 
that induces them to do injustice to the dead. 

But is it true that Judge Hall was in his lifetime, as has been intimated, 
a man of no good character, and unesteemed ? Are gentlemen aware that 
he was twice, in 1S02 and 1804, appointed by Mr. Jeflerson to the highest 
judicial stations, and that he held such trust until he was invested by Mr. 
Madison with that office the functions of which he was discharging when 
he imposed the fine upon General Jackson ? Did they — those great lead- 
ers of the early Democracy — whose names are so often invoked, but whose 
doctrines are so little regarded by the party that now assumes that title — 
did they cherish, with every mark of confidence and respect, and exalt to 
high dignities, a person who was incompetent, dishonest — a cowardly 
traitor ? You must do discredit, sir, to more than Judge Hall, if tliose 
charges are to be sustained. 

But what, after all, do these charges signify in relation to the true issue ? 
What defence do they make for General Jackson, and what proof against 
the decision of the Judge? Let us try them in that light by practical il- 
lustration. An offender against the law, or one who is charged as such, is 
arraigned to answer. It matters not whether he be a general or only a 
corporal — of high or low degree. The law, in its wisdom and equity, 
happily for us in this country, knows no distinction of persons. " Sir," 
asks the Judge, '• what have you to say in reply to this charge which has 
been made against you ?" " I say you are a foreigner," replies the de- 
fendant. Overlooking, in its leniency, this outrage and impertinence, the 
court might repeat the question, " What have you to answer to this com- 
plaint ?" •' You are a coward," cries the culprit, " and I refuse to make 
any answer." " You have no friends, and there can be no justice in your 
judgments." Does that sound absurd ? Would such pleas be received in 
the courts of Indiana and Illinois ? The learned gentlemen from these 



13 

States, who have advanced them here, can tell us. I am sure that my col- 
leagues will never venture to adopt them in their practice at home. Yet 
such, and no more, are some of the arguments with which Judge Hall and 
his decision have been gravely met, when you come to strip those argu- 
ments of their ornaments, and reduce them to their plaui import. 

Mr. Chairman, there is a graver and truer view to be taken of this sub- 
ject. There is a principle of civil order and of safety involved, which it 
becomes us all not only to remember, but to vindicate. I care not who or 
what Judge Hall was as an individual. No matter what description of 
person he was, or what his private character. We are only to know that 
he was the minister of the law, and that in him was the representation of 
the power and the sacred majesty of the Constitution. Vile, then, though 
he had been, and unworthy of trust, yet contempt and disregard of his pro- 
cess, and of his order, when made and executed in the rightful pursuance 
of his authority, was disobedience, not to him, but to the whole power of 
the People, as imbodied in that law and Constitution. Sir, let us thank 
God that it is so. Let us pray that this principle of safety and protection 
to all our rights may never be substituted by the unregulated caprice and 
arbitrary will of any man or set of men. The very evils of our system 
may be borne with patience, when we reflect that they are in part perhaps 
the fruits of this good principle. Intelhgent men, abroad and at home, 
have complained of the tyranny of public opinion here, and of the want of 
moral independence. It is the fault, I suppose, of a wise scheme and prac- 
tice of Government, in which individuals are nothing and the constituted 
authorities of the country are every thing. 

Bat, Mr. Chairman, these constituted authorities, and this system of 
Government, are not always respected even here, where they should meet 
with most consideration and regard. Not satisfied with the attacks upon 
Judge Hall on personal accounts, gentlemen, I am sorry to say, have 
sought to invalidate the weight of his judgment by making assault upon 
the whole judiciary of the country. Sir, no discussion, no party denun- 
ciation, ever gave me more pain than I felt to hear that important branch 
of our Government assailed, not only with terms of irreverence, but in a spir- 
it of bitter hostility ; and I could not have excused myself if I had remaiue I 
quiet in my seat, without entering my solemn protest against such an at- 
tack upon that department. If there is any thing that ought to be h'ild 
sacred, it is the judiciary of the country. In that we have a grave, high, 
solemn power, to which, in the last resort, and more than to all others, is 
intrusted ihe guardianship of life, and liberty, and reputation, and proper- 
ty — all that is dearest to men as members of civil society. In our Gov- 
ernment it is the great check, the wholesome power of restraint, alike upon 
popular turbulence and official usurpation. Under God, I do believe (hat 
our highest obligations as citizens are due to its protection. It is the sheet 
anchor, without which we should be soon all adrift. The fathers of our 
•country gave us the blessing of a written Constitution ; but it has been 
the patient and laborious work of the supreme judiciary, charged with its 
construction, in the last resort, and devoted to its high study, removed 
from the influences of political passion and prejudice, to widen and 
strengthen its foundations, and sink them deep in the hearts and under- 
standing of the people. The judges of our country and its courts all cor- 
rupt ? Sir, I will believe this when I forget that such men as Marshall, 
and Jay, and Story, and Kent, to say nothing of my colleague (Mr. Dean) 



14 

.and the gentleman from Illinois, (Mr. Douglass,) have consecrated thei: 
liv'-es and their intellects and their great moral influence to the good anc 
the ^. happiness of my countrymen. On this very day the members of the high- 
est j'Jidicial tribunal in the land are about assembling in another apartment 
of thiV^ Capitol ; and if we are to entertain such sentiments as does th€ 
gentle^.nan from Indiana, (Mr. Kennedy,) instead of imploring a blessing 
upor^' their labors, we ought to regard it as a meeting of traitorous con 
spi'-ators, plotting for the betrayal of our liberties. 

A'hen the gentleman from Indiana (Mr. Kennedy) told us that his op- 
pOitunities as a lawyer had enabled him to tell of corruption in the courts 
'^ made every allowance for some possible " secret griefs," and trusted 
that he was mistaken in his observation; but when my colleague, (Mr. 
Dean,) who has himself filled an important judicial station, added the 
weight of his testimony, I was afraid that some one, not knowing him 
well, might conclude that he was giving the convictions of experience. 
No, sir, no ; gentlemen have been carried away in the ardor of debate, 
and will not deliberately insist upon these indiscriminate charges against 
the judiciarji'. 

[Mr. Kennedy and Mr. Dean explained. Mr. Kennedy insisted that 
he had not gone so far as was imputed ; that he had only claimed that 
the judiciary was just as corrupt as any other department. Mr. Dean 
averred that he had not denounced the whole judiciary; he had marked 
out Judge Hall as an exception.] 

Mr. ScHENCK. Well, sir, I am glad if I have mistaken the gentlemen. 
I desire not to misrepresent their arguments and assertions; though I have 
taken them up as I did understand them, and as others around me have 
understood them. 

But to the gentleman from Indiana (Mr. Kennedy) again. He claims 
to testify in still another capacity. He says that he was a blacksmith before 
he became a lawyer. Well, suppose he was ! Does he mean to claim 
that he represents the opinions of that industrious class of artisans, and 
that they would sanction disrespect of the character of the judiciary ? Sir, 
it is not so. I know the mechanics of this country. There is not a more 
law-abiding class of citizens in the communitv than they. There is none 
that cherish a deeper respect and love for the free institutions of the land. 
It is their habitual reverence for order and right, their fidelity to the Con- 
stitution and the laws, which makes them what they are— influential and 
respected. Sir, I suspect that the gentleman has long since ceased to as- 
sociate with that sober-minded and honest portion of our people, or he 
would better understand their sentiments and feeling,s. He has forgotten 
the business of the blacksmith in a calling which he finds more congenial 
to his taste. He has retained only so njuch knowledge of the trade as 
helps him to hamma- on the polilicul anvil, and to blow the belloios of 
JJenwcracy ! 

And there, also, again, is the gentleman from Illinois. (Mr. Douglass.) 
He, too, has been a judge, I am told. He is, however, in some things, a 
strange expounder of the law, " Talk about illegality!" says he. "Talk 
about formalities!" Why, he expresses the most sovereign and scornful 
contempt for all such restraints upon tlie free action of his favorite Gene- 
ral, for all "rules of judicial proceeding," and says they are no better than 
« cobwebs to be brushed away !" He cared not, he said-— and I quote 



15 

the very language in which he has been reported — "he cared not wheth- 
er General Jackson violated the Constitution or not. He cared not wheth- 
er General Jackson suspended all civil authority or not." And then he 
proceeds to justify all his violence on the groiuid of necessity — that uni- 
versal plea for tyrants. Snch doctrines, Mr. Chairman, may do well enough 
for the meridian of St. Petersburg or Constantinople; but I take it they are 
rather startling to be asserted in this free country. Give currency and 
sanction to the doctrines which that gentleman has preached here, and you 
have only to say that when a commander of an army gets a commission in 
his pocket, every other authority, and all law in the land but his unbri- 
dled will, are utterly at an end. " Martial law is necessary to save all law.'* 
That, again, is another of that gentleman's legal propositions. Mr. Chair- 
man, the remedy is a strong one, and reminds me of no other prescription 
of which I have ever heard, except in the practice said to have been 
adopted bv a person once in atioiher learned profession. It was by a' 
quack doctor, one of your famous nostrum dealers, who was called upon 
by an anxious mother to adminisier something to her child that was sick 
with an ague, or some not very serious disease. He gave his medicine, 
and went off. The next day he returned to inquire after the little patient^ 
and found the mother in great alarm and distress. " Ah, doctor," said 
she, " my poor babe has grown worse and worse ever since I gave the 
dose; and now I'm afraid he is dying in convulsions." "Bless your 
heart, madam," he exclaimed, " that was exactly what I wanted. The 
fact is, you see, I don't know much about the ager, but Pm great onjits.^* 
[Mr. ScHENK was here intprrnpted by the expiration of his hour. After 
some further discussion, the committee rose, reported the bill back at the 
hour resolved on, the previous cjuestion was called and sustained, the 
amendments, and i.ll further debate cut off, and the bill was passed by the 
House and sent to the Senate.] 



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